The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act is Bad Public Policy

Abstract

After over twenty years, the Religious Freedom Restoration Act formula has proven itself to have three faults as a matter of public policy. First, the title is misleading, as the Supreme Court has repeatedly confirmed. Second, it was misleadingly presented as a benevolent law for religious actors who needed protection and whose actions were always benign. Third, its operative provisions contain legalistic, opaque text, which few can discern. The result is that the federal and state RFRAs, along with the Religious Land Use and Institutionalized Persons Act, have yielded and continue to yield unintended, indeed unimaginable, consequences.

Keywords: law & religion, religious freedom, constitution, establishment clause